Citation Nr: 0504977
Decision Date: 02/23/05 Archive Date: 03/04/05
DOCKET NO. 03-06 159 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUE
Entitlement to service connection for bilateral hearing loss.
REPRESENTATION
Appellant represented by: South Carolina Office of
Veterans Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Michael A. Pappas, Counsel
INTRODUCTION
The veteran served on active duty from November 1951 to
November 1953.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal of an August 2002 rating decision of the
Department of Veterans Affairs (VA), Columbia, South
Carolina, Regional Office (RO). The RO denied the claim of
entitlement to service connection for bilateral hearing loss.
In November 2003, the veteran testified at a travel Board
hearing conducted at the RO by the undersigned. The
transcript of that hearing has been associated with the
claims file, and the case is ready for appellate review.
It is noted in passing that when the veteran filed his claim
of service connection for bilateral hearing loss in July
2001, he described his disability in general terms as a
hearing problem that included a ringing in the ears. It is
further noted that in the course of the September 2001 VA
audiometric examination, the veteran complained that he has
tinnitus that began in service. The Board construes this as
a claim of entitlement to service connection for tinnitus.
As this issue has been neither procedurally prepared nor
certified for appellate review, the Board is referring it to
the RO for initial consideration and appropriate adjudicative
action. Godfrey v. Brown, 7 Vet. App. 398 (1995).
FINDINGS OF FACT
1. VA has satisfied the duty to notify the appellant of the
law and regulations applicable to his claim and the evidence
necessary to substantiate it, and all evidence necessary for
review of the issue considered herein on appeal has been
obtained.
2. There is credible evidence of the veteran having
experienced acoustic trauma in service.
3. The probative and competent evidence of record
establishes that the veteran's bilateral hearing loss cannot
satisfactorily be dissociated from active service.
CONCLUSION OF LAW
Bilateral hearing loss was incurred in active service.
38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107
(West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.385
(2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Preliminary Matter: Duties to Notify & to Assist
The Veterans Claims Assistance Act of 2000 (VCAA), codified
at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126
(West 2002), and its implementing regulations, codified at
38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2003), are
applicable to this appeal.
The VCAA and the implementing regulations provide that VA
will assist a claimant in obtaining evidence necessary to
substantiate a claim but is not required to provide
assistance to a claimant if there is no reasonable
possibility that such assistance would aid in substantiating
the claim. They also require VA to notify the claimant and
the claimant's representative, if any, of any information,
and any medical or lay evidence, not previously provided to
the Secretary that is necessary to substantiate the claim.
As part of the notice, VA is to specifically inform the
claimant and the claimant's representative, if any, of which
portion, if any, of the evidence is to be provided by the
claimant and which part, if any, VA will attempt to obtain on
behalf of the claimant.
It is significant to note that the National Personnel Records
Center (NPRC) has indicated that the veteran's service
medical records were unavailable because he had "fire
related service" (service medical records were presumed
destroyed in a fire at the NPRC). It is clear that the RO
has made diligent efforts to comply with the procedural
protections outlined by the CAVC in Dixon v. Derwinski, 3
Vet. App 261 (1992), for those veterans whose records are
unavailable.
The Board finds that the RO undertook a reasonably exhaustive
search for the veteran's service medical records, and that
any further efforts are not justified. Notwithstanding, the
Board recognizes its heightened duty to explain its findings
and conclusions and to consider the benefit of the doubt in
cases where service medical records are unavailable. See
O'Hare v. Derwinski, 1 Vet. App. 365 (1991); Dixon v.
Derwinski, 3 Vet. App. 261 (1992). The Board will proceed in
that manner.
In the veteran's case, the RO notified him of the
requirements for service connection, and obtained private
treatment records and a VA audiometric examination to assist
in the development of his claim. In view of the fact that
this decision is a complete grant of benefits sought on
appeal, further notification and development pursuant to the
VCAA is not required.
Criteria
In order to establish service connection for a claimed
disability, the facts, as shown by evidence, must demonstrate
that a particular disease or injury resulting in current
disability was incurred during active service or, if
preexisting active service, was aggravated therein. 38
U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2004).
Service connection for sensorineural defective hearing may be
presumed if it became manifest to a degree of 10 percent
disabling during the veteran's first year after separation
from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002);
38 C.F.R. §§ 3.307, 3.309 (2004).
In order for hearing loss to be considered a disability for
VA purposes entitling the appellant to compensation benefits
certain criteria must be met. Under 38 C.F.R. § 3.385
(2004), impaired hearing will be considered to be a
disability when the auditory threshold in any of the
frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels
or greater; or when the auditory thresholds for at least
three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz
are 26 decibels or greater; or when speech recognition scores
using the Maryland CNC Test are less than 94 percent. The
regulation does not state that the requirements contained
therein need be met during service. See Ledford v.
Derwinski, 3 Vet. App. 87 (1992).
The United States Court of Appeals for Veterans Claims (CAVC)
held in Hensley v. Brown, 5 Vet. App. 155 (1993), that
38 C.F.R. § 3.385 does not preclude service connection for a
current hearing disability where hearing was within normal
limits on audiometric testing at the time of separation from
service.
A disorder may also be service connected if the evidence of
record reveals that the veteran currently has a disorder that
was chronic in service or, if not chronic, that was seen in
service with continuity of symptomatology demonstrated
thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet.
App. 488, 494-97 (1997).
Evidence that relates the current disorder to service must be
medical unless it relates to a disorder that may be
competently demonstrated by lay observation. Savage, 10 Vet.
App. at 495-97. For the showing of chronic disease in
service, there is required a combination of manifestations
sufficient to identify the disease entity, and sufficient
observation to establish chronicity at the time, as
distinguished from merely isolated findings or a diagnosis
including the word "chronic." 38 C.F.R. § 3.303(b).
Notwithstanding the lack of evidence of disease or injury
during service, service connection may still be granted if
all of the evidence, including that pertinent to service,
establishes that the disability was incurred in service. See
38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d);
Cosman v. Principi, 3 Vet. App. 503, 505 (1992).
A service connection claim must be accompanied by evidence
which establishes that the claimant currently has the claimed
disability. See Rabideau v. Derwinski, 2 Vet. App. 141, 144
(1992); see also Brammer v. Derwinski, 3 Vet. App. 223, 225
(1992).
In order to prevail on the issue of service connection, there
must be medical evidence of a current disability; medical
evidence, or in certain circumstances, lay evidence of in-
service occurrence or aggravation of a disease or injury; and
medical evidence of a nexus between an in-service injury or
disease and the current disability. See Hickson v. West, 12
Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App.
341, 346 (1999).
When all the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the appellant prevailing in either
event, or whether a preponderance of the evidence is against
a claim, in which case, the claim is denied. Gilbert v.
Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. §§ 3.102, 4.3
(2004).
The Secretary shall consider all information and lay and
medical evidence of record in a case before the Secretary
with respect to benefits under laws administered by the
Secretary. When, after consideration of all of the evidence
and material of record in an appropriate case before VA,
there is an approximate balance of positive and negative
evidence regarding the merits of an issue material to the
determination of the matter, the Secretary shall give the
benefit of the doubt to the claimant. 38 U.S.C.A. § 5107;
Alemany v. Brown, 9 Vet. App. 518, 519 (1996).
Factual Background & Analysis
Service connection may be granted if the evidence establishes
that the claimed disability is related to service. Applying
the Hickson analysis, the initial question is whether there
is evidence of the current claimed bilateral hearing loss.
The September 2001 VA audiometric examination report
discloses that the veteran's hearing acuity was measured as
having average pure tone threshold loss of 63 decibels and a
speech recognition score of 72 percent in the right ear, and
average pure tone threshold loss of 65 decibels and a speech
recognition score of 40 percent in the left ear. This
resulted in diagnoses of moderate to moderately severe
sensorineural hearing loss in the right ear and moderately
severe sensorineural hearing loss in the left ear. The Board
finds for the current existence of the claimed bilateral
hearing loss. 38 C.F.R. § 3.385 (2004). The Hickson element
(1) has therefore been satisfied as to this disability.
With respect to Hickson element (2), there are no service
medical records available, and consequently no record of
hearing loss in service. There were no treatment records
dated within the first post-service year. A diagnosis of
hearing loss during service or to a degree of ten percent
within the first post-service year cannot be substantiated
due to a lack of records showing symptomatology that could be
associated with such disorder.
Notwithstanding the lack of evidence of bilateral hearing
loss during service, service connection may still be granted
if all of the evidence, including that pertinent to service,
establishes that the disability was incurred in service. See
38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v.
Principi, 3 Vet. App. 503, 505 (1992). The question then is
whether the evidence is at least in equipoise as to whether
the veteran has bilateral hearing loss that is related to
service.
The veteran himself has theorized that his bilateral hearing
loss is directly the result of military noise exposure that
he experienced as a medic in the infantry during service. He
has testified and submitted written statements alleging that
for prolonged periods during service, he was in close
proximity to soldiers when they were firing various weapons,
including machine guns, M-1 rifles, and bazookas. With
respect to any medical conjectures that could be made on his
part, the veteran has not been shown to possess the medical
background required to provide such an opinion. Espiritu v.
Derwinski, 2 Vet. App. 492 (1992).
Lay hypothesizing, particularly in the absence of any
supporting medical authority, serves no constructive purpose
and need not be considered. Hyder v. Derwinski, 1 Vet.
App. 221, 225 (1991).
The Board notes, however, that the veteran is competent to
report that he was exposed to sustained acoustic trauma from
weapons fire in service because this requires only personal
knowledge, not medical expertise, as it comes to him through
his senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994).
The question for consideration is whether the veteran
sustained an injury to his ears in service that resulted in a
current disorder.
Applying the Hickson analysis, the Board concludes that there
was an in-service injury to the veteran's ears in the form of
acoustic trauma from sustained weapons fire at close
proximity, and that the veteran has a current bilateral
hearing loss disorder, characterized as moderate to
moderately severe sensorineural hearing loss in the right ear
and moderately severe sensorineural hearing loss in the left
ear. Hickson elements (1) and (2) are accordingly met.
With respect to Hickson element (3), medical nexus evidence,
the Board finds that the evidence is in equipoise as to the
question of whether the current diagnosed bilateral hearing
loss is etiologically related to an in-service injury. The
VA examiner who examined the veteran in September 2001 for
the purpose of determining the etiology of the claimed
disorder did assert that it was at least as likely as not
that his military noise exposure could contribute to his
high-frequency hearing loss.
On the one hand, by the use of the word "could" the
examiner seems to introduce the possibility that there was an
equal likelihood that military noise exposure "could not"
have contributed to the veteran's hearing loss. Although
this phrasing might tend to make the opinion less probative,
by prefacing the opinion in terms of it being "as likely as
not," the examiner clearly wanted to emphasize the equal
likelihood that military noise exposure contributed to the
etiology of the veteran's hearing loss.
On the other hand, although the examiner did not have the
benefit of a review of the veteran's claims file, the
examiner was clearly aware of the veteran's post-service
industrial noise exposure. Further, the examiner did provide
reasons and bases for the opinion that were not solely based
upon the veteran's uncorroborated recollections. Pursuant to
38 U.S.C.A. § 5107, where, after review of all the evidence,
there is an approximate balance of positive and negative
evidence regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant.
See also 38 C.F.R. § 3.102.
As to this issue, the Board finds that there is an
approximate balance of the positive and negative evidence as
to whether the veteran currently has bilateral hearing loss
that is related to the in-service injury. Essentially, the
probative and competent evidence of record establishes that
the veteran's bilateral hearing loss cannot satisfactorily be
dissociated from active service. Thus, the Board concludes
that the claim for service connection for bilateral hearing
loss is supported by the evidentiary record thereby
warranting entitlement to a grant of service connection. 38
U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49
(1990).
ORDER
Entitlement to service connection for bilateral hearing loss
is granted.
____________________________________________
RONALD R. BOSCH
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs